Workers’ compensation law offers bleak future for Wichita nurse who nearly died of COVID-19

Via Christi Health registered nurse Brian Wilhite interacted a couple times in August 2020 with what was thought to be a hospital patient with routine respiratory issues.

In fact, Wilhite’s patient was extraordinary and would dramatically change his life.

Wilhite wasn’t aware the patient had apparently slipped through the Wichita hospital’s coronavirus screening protocol. By the time it was confirmed the person had contracted COVID-19, Wilhite believes the damage had been done. Wilhite eventually began to experience a tickle in his throat, fever and sweats. He tested positive for the virus. His medical condition nosedived while hospitalized with a ferocity that compelled doctors to conclude he was dying and a candidate for hospice.

His risky transfer to Integris Baptist Medical Center in Oklahoma City, which specializes in lung impairments, saved his life.

“I don’t remember going to ICU,” Wilhite said. “I was in a coma. I went into complete lung failure. I’ve got COVID brain. I’m a long-hauler.”

Wilhite, 50, is a Kansas Army National Guard veteran who served more than 20 years in uniform and deployed to Iraq. He worked as a security coordinator at Via Christi while in the military, but upon leaving the Kansas Guard followed a career dream of attending nursing school. He was hired as a nurse at Via Christi about five years before the pandemic turned the nation’s hospitals upside down.

He said doctors remained pessimistic that he could return to work as a nurse, and he’s inclined to believe protracted problems associated with COVID-19 made it more likely he was dealing with a permanent disability. He relies on portable oxygen and endures medication for back pain as a result of not being moved for long periods in the hospital. He is easily fatigued. Talking for long periods is a struggle. Sometimes his mind is clouded.

Statutory challenges

The legal challenge to be endured by Brian and Janet Wilhite, their Wichita attorney said, wasn’t of Via Christi’s making. It centered on a Kansas workers’ compensation law written prior to the pandemic. It could be interpreted to block claims for permanent disability among health workers such as Wilhite.

At issue is a plausible reading of Kansas statute that would deny compensation because COVID-19 wasn’t a site-specific malady, such inhaling asbestos at a manufacturing plant. In terms of COVID-19, a person could catch the virus anywhere.

“The statute does not allow ‘diseases of ordinary life,'” said Wichita attorney Jonathan Voegeli. “All our front line workers are called heroes, but no one has heard they are not covering workers’ compensation cases. Morally, I think it’s reprehensible.”

He said the goal was to convince an administrative judge Wilhite’s case should be eligible for the Kansas workers’ compensation system, which was established a century ago to provide protection to workers injured doing their job in the normal course of business. The next step would be to secure permanent and total disability status for Wilhite to gain financial support and medical coverage, Voegeli said.

He said the case highlighted the reality that Kansas had the lowest payout for workplace disability in the United States. The financial cap in Kansas was set at $155,000. In Wilhite’s case, that would replace less than three years of his nursing salary.

The Kansas ceiling of $155,000 hasn’t been modified in a decade. The law doesn’t take into account inflation, a worker’s age, severity of injury, income, or type of work performed. The system precludes a person for filing a lawsuit to receive more compensation.

The National Academy of Social Insurance issued a report in October that indicated Kansas was among five states with a cap on workers’ compensation benefits for permanent disabilities. Colorado puts that upper limit at $213,000, while Mississippi stops at $235,000. Indiana is more generous at $390,000 and South Carolina settles at $451,000 — nearly three times what Kansas insurers would have to pay for the same level of disability.

Slow-walk medical care

Former Seaman school district paraprofessional Anita Miller enjoyed working with special-needs children in elementary school. She got along well with teachers and administrators in the Topeka-area district. It was in this full-time job she loved that Miller injured her neck and joined the roster of people with total permanent disabilities.

She often lifted children while in awkward positions, but the result was different on Sept. 29, 2017. She had hoisted a child from a wheelchair and felt burning pain on the left side of her neck. Holding the child in her lap only increased the agony.

“It just started burning,” Miller said. “The nerve pain was just intense. It felt like someone was screaming in my ear all day. By the time I got home, I was just dying.”

She worked off-and-on until 2019, before the discomfort made it impossible to be a productive employee at Seaman schools.

She underwent spine surgery, a move intended to help her regain what she had given up. That included the job, working in the yard and walking three miles a day in the summer months. It didn’t resolve her pain. Still in her early 50s, Miller can putter around the house most mornings, but by afternoon often must recline to alleviate the burn. Sitting for more than 30 minutes or so can be very uncomfortable.

Miller’s experience has provided her a front seat to the Kansas workers’ compensation system. An administrative judge declared her totally disabled, but Seaman’s insurance company appealed. The workers’ compensation appellate board affirmed the judge’s ruling. She was awarded the maximum benefit allowed in Kansas for lost income: $155,000.

She said she continued to struggle with a system that feels designed to give employers and their insurance companies an edge. It doesn’t feel fair that insurance companies have the legal authority to decide which doctor provides her medical care under workers’ compensation. There’s nothing to prevent an insurance company employee from discussing her case with those physicians.

Medication can be helpful in dulling the pain, she said, but it hasn’t provided the answer. She’s request a special procedure to deaden a key nerve, but gaining approval through the workers’ compensation system has been a hassle.

“I think it’s ridiculous they take so long. I would say they slow everything down as much as possible hoping they’ll just give up. That claimants will quit fighting for medical treatments and lost income,” Miller said.

Social Security hiccup

Mike Smith, a farm truck driver in Hodgeman County in southwest Kansas, was collecting Social Security after turning 67 but wanted to keep working until 75. That plan unraveled at 73 when he was seriously injured while stepping down from the cab of a Kenworth.

“I lost balance and fell,” he said. “I couldn’t get up.”

That blow to the head in 2018 left him with compromised vision. For one year, he collected weekly benefits through workers’ compensation as well as his Social Security retirement benefit. That’s when it was noticed Smith was in violation of a 2010 Kansas law requiring a dollar-for-dollar offset when an injured worker was simultaneously receiving Social Security and payments through workers’ compensation.

In short, Smith was overpaid about $32,000. The farm’s insurance company has been clawing back that money.

In 2000, because of the aging population and increasing cost of living, the federal government had created the Senior Citizens Right to Work Act. This reform in federal law enabled Americans at full retirement age — such as Smith — to take a job without reducing their Social Security assistance. However, the Kansas Legislature influenced the intent of that federal law a decade ago by imposing the offset.

Smith said would like the Legislature to repeal the setoff provision of workers’ compensation law, because it unfairly discouraged aging Kansans from remaining in the labor force.

“The fact is, I owned my Social Security. Why did they take that away from me?” he said. “If I had the ability to work until I was 75 years old, they should have paid me until I was 75.”


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